Kia Franklin

Little Ex Ante, Ex Post Protection for Nursing Home Patients

This New York Times article is yet more proof that we've got to get rid of binding mandatory arbitration requirements in nursing home contracts:

WASHINGTON — Nursing home inspectors routinely overlook or minimize problems that pose a serious, immediate threat to patients, Congressional investigators say in a new report.

In the report, to be issued on Thursday, the investigators, from the Government Accountability Office, say they have found widespread “understatement of deficiencies,” including malnutrition, severe bedsores, overuse of prescription medications and abuse of nursing home residents.

Nursing homes are typically inspected once a year by state employees working under contract with the federal government, which sets stringent standards. Federal officials try to validate the work of state inspectors by accompanying them or doing follow-up surveys within a few weeks.

The accountability office found that state employees had missed at least one serious deficiency in 15 percent of the inspections checked by federal officials. In nine states, inspectors missed serious problems in more than 25 percent of the surveys analyzed from 2002 to 2007. [Read more]

Ineffective safety inspections leave more nursing home residents vulnerable to serious injury or death due to safety violations. The potential for more victims only means there's potential for more arbitration injustice, if nursing homes are permitted to continue requiring its residents to sign binding mandatory arbitration clauses.

We obviously want effective incentives for nursing homes to prioritize quality care and safety for their residents. From a financial perspective, there's no incentive for these facilities to optimize care when they face negligible penalties for violations on the front end via safety inspections, and insignificant penalties for violation-related injuries on the back end since victims are shut out of court and since arbitrators favor the industry.

Not surprisingly, nursing home industry trade groups oppose both the proposed bill to toughen penalties for safety violations ($100,000 for safety deficiencies that cause a patient's death), and the proposed bill to get rid of binding mandatory arbitration requirements. A representative from the American Health Care Association told them: "We should not be increasing fines, adding auditors and encouraging a ‘gotcha’ mentality. We should be testing new, less punitive ways to measure and improve the quality of care.”

I wonder if Mr. Yarwood would say that if his elderly loved one (or, if he's elderly, if he himself) were a victim of nursing home abuse or neglect.